Sunday, November 11, 2018

+Love's Last Stand

As readers may have noted, I have stopped posting regularly about the Episcopal "Church" in the USA ("ECUSA", for short) -- mainly for the reasons (as explained in so many prior posts on this site) that it is losing its identity as a Christian church, and that I am no longer a member. Now and then, however, there arises from ECUSA's decay an item which is of broader interest to Christians at large, as it points up what happens when a religious denomination  surrenders itself to the zeitgeist (and no longer follows the Heiligen Geist).

The current situation in the Episcopal Diocese of Albany, led by the Rt. Rev. William H. Love, is just such an item. On the surface, it presents a diocesan bishop who is doing his utmost to carry out his ordination vows to "guard the faith, unity and discipline of the Church" (BCP 517), and to "[f]eed the flock of Christ committed to your charge, guard and defend them in His truth, and be a faithful steward of his holy Word and Sacraments."

His vows are being put to the test because of the passage, by the ECUSA General Convention last summer, of Resolution B012. That legislation purports to make available, in each and every diocese in the USA, "trial" rites of same-sex marriage and blessings to those couples desiring them. As Bishop Love explains, in a pastoral letter addressed "To the People of God in the Diocese of Albany and throughout the World":
With the passage of B012, the 79th General Convention of The Episcopal Church in effect is attempting to order me as a Bishop in God’s holy Church, to compromise “the faith that was once for all delivered to the saints” (Jude 3 ESV), and to turn my back on the vows I have made to God and His People, in order to accommodate The Episcopal Church’s “new” understanding of Christian marriage as no longer being “a solemn and public covenant between a man and a woman in the presence of God” as proclaimed in the rubrics of the Book of Common Prayer (BCP 422), but now allowing for the marriage of same-sex couples.
The 8th Resolve of B012 states: “Resolved, That in dioceses where the bishop exercising ecclesiastical authority (or, where applicable, ecclesiastical supervision) holds a theological position that does not embrace marriage for same-sex couples, and there is a desire to use such rites by same-sex couples in a congregation or worshipping community, the bishop exercising ecclesiastical authority (or ecclesiastical supervision) SHALL invite, as necessary, another bishop of this Church to provide pastoral support to the couples, the Member of the Clergy involved and the congregation or worshipping community in order to fulfill the intention of this resolution that all couples have convenient and reasonable local congregational access to these rites."
In his letter, Bishop Love details seven grounds for his opposition to the directive in that 8th Resolve. For purposes of this post, I summarize them in point-form here, but be sure to read the whole thing:
  • First: B012 contradicts God’s intent for the sacrament of marriage as revealed through Holy Scripture;
  • Second: B012 is contrary to the 2000-year-old understanding of Christian marriage as still reflected in the rubrics of the BCP, and in the Canons of the Diocese of Albany;
  • Third: B012 "is doing a great disservice and injustice to our gay and lesbian Brothers and Sisters in Christ, by leading them to believe that God gives his blessing to the sharing of sexual intimacy within a same-sex relationship, when in fact He has reserved the gift of sexual intimacy for men and women within the confines of marriage between a man and woman";
  • Fourth: B012 encourages Episcopalians to engage in sexual behavior which is expressly forbidden in both the Old and New Testaments;
  • Fifth: By its false teaching and encouragement to sinful behavior, B012 is leading same-sex couples, as well as ECUSA itself, to come under God's judgment (resulting in the precipitous decline in membership throughout the Church);
  • Sixth: B012 attempts to force Bishop Love to violate his ordination vows, as stated above, and would lead to schism and departures in his Diocese; and
  • Seventh: Succumbing to B012's directive would render it impossible for Bishop Love to represent his diocese before the wider Anglican Communion and the whole world.
There is much more in the letter, including assurances to same-sex couples that scripture does not forbid close friendships or living together, only sexual intimacy (citing this article; see also the other resources linked on this page). As a consequence of the seven factors he identifies, Bishop Love closes his letter with this Pastoral Directive:
Until further notice, the trial rites authorized by Resolution B012 of the 79th General Convention of the Episcopal Church shall not be used anywhere in the Diocese of Albany by diocesan clergy (canonically resident or licensed), and Diocesan Canon 16 shall be fully complied with by all diocesan clergy and parishes.
Thus the lines are drawn, and the conflict caused by the actions of General Convention now invades the hitherto peaceful diocese of Albany. For instance, could Presiding Bishop Michael Curry now try to exercise his supposed authority to issue a "Pastoral Directive" to Bishop Love, requiring that he make the trial rites available to any in his diocese that request them? (Note that Resolution B012's mandate does not take effect Churchwide until December 1.) 

As I pointed out in this earlier post, it is extremely doubtful that the enactment of the provision in Title IV that purports to confer upon the Presiding Bishop metropolitan authority over his episcopal colleagues can be squared with the grant of all ecclesiastical authority, by Article II.3 of ECUSA's Constitution, to a bishop within his own diocese. In other words, individual diocesan bishops are, by Section 3 of Article II of the Church's Constitution, limited to exercising jurisdiction within their own dioceses -- they may not exercise any authority within another diocese unless invited to do so by the ecclesiastical authority of that other diocese.  

The Presiding Bishop is not even a diocesan bishop, and has no diocese of the United States within which he or she can act as the ecclesiastical authority. Nor does the Constitution vest the Presiding Bishop with authority over other bishops. Consequently no canon (bylaw) of the Church can confer any greater authority on the Presiding Bishop than he or she has under the Constitution.

Without Bishop Love's consent, therefore, how could the Presiding Bishop issue him a "Pastoral Directive", let alone one that requires him to violate his ordination vows and the rubrics of the BCP, as well as his own diocese's canons? (Even Canon IV.7.2, authorizing the issuance of Pastoral Directives, specifies that a Directive must "be neither capricious nor arbitrary in nature nor in any way contrary to the Constitution and Canons of the General Convention or the Diocese" [emphasis added].)

If Bishop Love cannot be directed by any other bishop to violate his vows or his diocese's canons, then neither may General Convention do so. The problem is with that capitalized word "SHALL" in the 8th Directive of Resolution B012, quoted above. The mandatory language of the Resolution is directed improperly at diocesan bishops, and so violates their constitutional authority within their own diocese as specified in Article II.

A qualification: at the session of the House of Bishops which adopted B012 last summer, there was this exchange between Bishop Dabney Smith, of SW Florida, and the chair of the committee that reported the Resolution for passage:
Bishop Smith: . . . a question: . . . I'm wondering about the definition of the word "shall" in a resolution compared with the use of "shall" in a canon.   
Committee chair: I would just say: there is a difference, number one. And also, this word "shall" is modified by the next phrase, "as necessary". . . . The committee . . . I believe I can say . . . we intended that it was a matter of pastoral discretion for the bishop.
(You can see this exchange beginning at 45:28 of the video of the session, at this link. Also on the video, beginning at the 28:00 mark, are Bishop Love's observations in opposition to B012.)

Will ECUSA, therefore, in light of the committee's insertion of the qualifier "as necessary", grant to Bishop Love the full extent of his pastoral discretion in refusing to implement B012 in his diocese?  It remains to be seen -- especially in view of ECUSA's previous shameful treatment of Bishop Mark Lawrence of South Carolina. If the House of Bishops begins disciplinary proceedings against Bishop Love, then history will repeat itself in Albany.

It should go without saying that no Canon or Resolution of General Convention may by its terms be contrary to the provisions of ECUSA's Constitution. But the LGBT movement within ECUSA, by pushing and pushing to force same-sex rites on all dioceses in the Church, has now brought matters to such a pass. If ECUSA attempts to rein in or discipline Bishop Love for refusing to violate his own vows or canons, then it will demonstrate once again its contempt for church order as established by its Constitution, and the surrender of its integrity to the spirit of the times. And that is why this Curmudgeon has such difficulty in perceiving ECUSA any longer as a church which recognizes Christ as its head.

On this Armistice Day, on which we honor all those who gave their lives to keep our country free, it might be well to consider the connection to its equivalent in the church calendar, All Saints Day. On that festival day, Christians honor all the saints whose sacrifices have ensured to us the transmission of the "faith once delivered" to the very first of them. Both saints and brave warriors are necessary to preserve our freedoms and our faith. By rejecting (or abandoning) what they have kept secure for us, we place ourselves and our country at risk of God's judgment.

May God preserve Bishop Love strong in his faith, and may He so preserve us all. 



Wednesday, October 31, 2018

Why I Am Fed Up With the Media

I have not been blogging, because I have no wish to add to the cacophony that assaults us every day, without letup. That said, the video below explains why in pictures that are far better than any words could express:

Sunday, September 16, 2018

A Modest Proposal to Deal with Politics at Sports Events

Despite the obvious effect of their injecting unwanted politics into their football games, most NFL players and their team owners are ignoring their declining audiences and insisting on their "right" to show in public their collective disrespect for the country that has made them wealthy beyond childhood dreams.

I have no problem with their saying or doing anything they wish in private. But when they force a (temporarily) captive audience, who just came to see a game, to witness how dissatisfied these football elite are with some unarticulated aspect of America while everyone else stands for the national anthem, then enough. If they don't respect the anthem, they don't respect the flag, or the country for which both stand. So why subject them to an unwanted performance at the start of each of their games?

Let's see how they would like some politics injected into their livelihood.

The national anthem, whose words by Francis Scott Key were set so long ago to a tune most people cannot sing well (or sing at all), but which is glorious when properly performed, is by now the property of the people of the United States. Congress, acting on their behalf, ought to license its performance at sporting events. The license would be automatic and free of charge to any event put on by teams and players who have no trouble standing during its performance.

But the license should be denied to those who cannot show the minimal respect which every average citizen has no trouble giving: standing silently while it is performed, and then cheering afterward. Each NFL team should be informed that it no longer has the right to perform the anthem at any of its games until its members are ready to grant it the minimum degree of respect which Americans accord to it.

Should any such team go ahead with the anthem's performance, just so they can continue to display their disrespect, then an automatic licensing fee should be imposed without further ado, equal (for the first offense) to $10 per person attending, and accelerating for each subsequent license violation to $100 per person. Indeed -- let the fee keep going up until the price for showing disrespect becomes too high for the team and its owners to pay.

Further, any team that does not have a license to have the anthem performed at its events, but aspires to qualify for such a license eventually, will have to show that it gave a public announcement before the start of each of its unlicensed events to this effect: "The [name of team having the home stadium] announce that they do not yet care to show respect for the national anthem, and so by law are not licensed to perform the anthem at any of their games. Accordingly, there will be no performance of the anthem at this event. Anyone who wishes a refund of the price for their ticket should leave now and collect their money at the box office."

The team should also be prepared to show that it gave a similar notice to every person purchasing a ticket for the event, and promptly refunded the ticket price to any holder who asked for it before the game started.

Finally, Congress should pass a law making the price of any ticket to a licensed sporting event (up to a maximum of 24 such events per year) tax-deductible, but denying any such deduction for tickets to unlicensed events. Later on, if more pressure is needed, Congress could impose a tax, say, of 20% on the price of a ticket to an unlicensed event.

And that is how you play politics with sports events.


Friday, September 7, 2018

Finally! a Politician Speaks the Unvarnished Truth

I have deliberately stayed away from blogging recently -- partly because the news is moving so fast that I have no ability in these days to get above the fray and take a longer view of things, and partly because the Internet is already swamped with too much instant commentary and reaction. Indeed, I dare say that trying to stay on top of today's news as it develops from minute to minute could become hazardous to one's sanity.

The recent Senate hearings on nominee Brett Kavanaugh are a perfect case in point. Was it ever the case that the national networks wasted so much time on such political grandstanding, demagoguery, and posturing -- which had no relevance to the candidate's fitness to occupy a seat on the nation's highest court?  Such politicization of the "advise and consent" role the Senate plays in judicial nominations distorts the real role that Congress ought to play in our government.

I could go on, but there is thankfully a much more direct and forceful way to make my point. Just watch this amazingly candid and absorbing opening statement by Senator Ben Sasse of Nebraska, delivered mostly ex tempore on September 4.  You will never spend a better eleven minutes listening to such a brilliant dissection of what so ails our current, broken system, and this blog can serve no better current purpose in these hysterical times than to bring it to your sober attention:




Wednesday, June 13, 2018

"O, What a Tangled Web We Weave . . ."

" . . . when first we practice to deceive." That's a famous quote, frequently misattributed to Shakespeare, that comes from the epic poem Marmion, by Sir Walter Scott. And it perfectly describes the current situation with the Episcopal Church case in South Carolina.

For you see, the Episcopalians conspired with Associate Justice Kaye Hearn of the South Carolina Supreme Court to hide her bias and prejudging of the issues until she was allowed to hear and contribute her opinion to the case without objection from the attorneys for Bishop Mark Lawrence and the parishes in his Diocese of South Carolina. She was too biased to conceal her partisanship in the oral argument of the case, and then she displayed it overtly when she ruled against Bishop Lawrence and his parishes -- even going so far as to single him out for "betraying his vows of ordination" and for "breaches of fiduciary duty."

(Note to Justice Hearn: the secular courts cannot, consistently with the First Amendment, entertain questions as to whether a cleric in a religious denomination has broken faith with it, or acted in breach of the unique duties owed by a bishop to the church in which he sits. So your opinion that expresses your views on those issues was ultra vires -- beyond your powers to decide.)

And then, having delivered her coup de grace to Bishop Lawrence, Justice Hearn finally saw fit to recuse herself from the case -- after she had signed her opinion!

That opinion was one of five in the case, no two of which followed the same reasoning.  (To be sure, Justices Pleicones and Hearn "concurred" in each other's opinion, but Justice Hearn based her result on grounds other than those of Justice Pleicones, such as the law of constructive trusts.) Given such a splintered result, what is the trial court judge to do on remand?

Here are the conclusions to each of the three opinions agreeing that Judge Goodstein's judgment below should be reversed:

Pleicones, J.: "Further, the civil courts in South Carolina cannot decide disputes which are governed by church polity and governance concerning property ownership.  For the reasons given above, I have determined that the real and personal property disputes sought to be adjudicated in this civil lawsuit are 'question[s] of religious law or doctrine masquerading as a dispute over church property [and] corporate control . . . .' See All Saints at 445, 685 S.E.2d at 172. I find, therefore, the Court 'must defer to the decision of the proper church judicatories . . . .'  Id.
. . . For the reasons given above, I would reverse the circuit court's order and also join Justice Hearn's opinion."

Hearn, J.: "Based on our doctrine of deference to ecclesiastical authority, the Appellants represent the true Lower Diocese of the Protestant Episcopal Church in South Carolina and are therefore entitled to all property, including Camp Saint Christopher and the emblems, seals, and trademarks associated with the National Church. This holding is based on the National Church's recognition of Charles vonRosenberg as its Bishop and the express trust imposed on Respondents' property by the Dennis Canon, as well as on state corporate law principles." [Footnote omitted.]

Beatty, C.J.: "Thus, in contrast to the majority, I would find the parishes that did not expressly accede to the Dennis Canon cannot be divested of their property. Because there was no writing purporting to create a trust and they took no other legal action to transfer ownership of their property, I believe these parishes merely promised allegiance to the hierarchical national church. Without more, this promise cannot deprive them of their ownership rights in their property. However, I agree with the majority as to the disposition of the remaining parishes because their express accession to the Dennis Canon was sufficient to create an irrevocable trust. [Footnote omitted.] In conclusion, I readily acknowledge the controversy surrounding this case and the ramifications of the Court's decision. Even so, my decision cannot be driven by personal beliefs or a desired result. Strictly applying neutral principles of law, which I believe this property dispute mandates, I would affirm in part and reverse in part the order of the circuit court."

Thus two of the Justices viewed this case as one in which the civil courts should "defer" to the "ecclesiastical authorities" -- even though South Carolina is a "neutral principles" State, in which "deference" has no role! -- while the third reaches his result based "strictly applying neutral principles of law." Two of them simply "reverse" the decision below (and one only in part), while only Justice Hearn declares the whole kit and caboodle to belong to her own denomination.

The first two Justices would thus have overruled the leading South Carolina neutral principles case, All Saints Parish Waccamaw v. Protestant Episcopal Church in the Diocese of South Carolina, but two votes do not suffice for that. They would have required a third vote to overrule that decision, and they never obtained that third vote. So the neutral principles doctrine of All Saints Waccamaw stands unchanged.

Nor did Justice Hearn get any other Justice to buy into her "constructive trust" rationale (unless Justice Pleicones may be said to have done so by "joining" in her opinion). But that was not a ground urged on appeal by ECUSA or its rump diocese -- so Justice Hearn gratuitously inserted her views on an issue that was not properly before the Court.

Finally, only two of the Justices (Hearn and Beatty) mentioned Camp Christopher -- the retreat property that belongs not to any one parish, but to the Diocese itself. The Dennis Canon does not apply to the property of a diocese, and so it cannot be used to transfer ownership. For Justice Hearn, "deference" requires that result, while for Chief Justice Beatty, the result follows from the fact that he cannot see how Bishop Lawrence's Diocese is the "successor" to the diocese that owned the property before the lawsuit began. (But the Diocese did not go anywhere -- it is still the same South Carolina religious corporation it always was. So how can there be any question of whether a Diocese can "succeed" itself? The Chief Justice went out on a limb, and no one joined him.)

An even bigger problem for Judge Goodstein on remand, however, is how she should regard the opinion of Justice Hearn, who belatedly recused herself due to a (presumed) perception of a conflict of interest. (You think?) Which is to say, she never should have participated in the case to begin with. In light of that fact, why should attention be paid any longer to her views of the case? To give effect to them would be to allow a conflict of interest to decide the case's outcome, when courts are required to avoid all conflicts in order to ensure their impartiality.

If Justice Hearn's opinion and vote are disregarded, we then have a situation in which the vote of the South Carolina Supreme Court was only 2-2 for reversal, which means that Judge Goodstein's previous order would not be reversed, but would stand as the final decision in the case. In other words, Justice Hearn's deceptive tactic of waiting for the petition for rehearing to recuse herself (thereby ensuring a 2-2 vote against granting the rehearing) would be turned against her, and used instead to affirm the judgment below.

Can you imagine how the ECUSA attorneys will jump and yell and stamp their feet if Judge Goodstein takes that position on remand? But what can they do otherwise, if she does? The most they could do is take another appeal up to the South Carolina Court of Appeals, and then ask the Supreme Court to take the case. But if the case gets that far, Justice Hearn will no longer be able to participate in it. The outcome would thus not be assured at all.

This mess is to be laid entirely at the feet of Justice Hearn and the denomination of which she is a devout and practicing member, namely, the Episcopal Church. They conspired together, as I charge, to obtain the result they wanted by concealing the open bias that Justice Hearn later felt bold enough to display. And then, by recusing herself only at the last minute, Justice Hearn has managed to enshroud all her previous actions in the case with doubt and uncertainty as to their validity.

Only another (and very different) South Carolina Supreme Court can sort out this mess. In this Curmudgeon's view, Bishop Lawrence and his attorneys should take the firm position that with Justice Hearn's recognition that she never should have participated in the case, her opinion must be disregarded just as if she had openly withdrawn it. To give it any shrift at all would be to sanction open bias and partiality in our court system, and thereby undermine the rule of law.

 [UPDATE 06/14/18: I am informed that the "Supreme Court" (which three Justices, after Justice Hearn's recusal, I don't yet know) "remitted" (not "remanded") the case to a different circuit court and judge -- to Judge Edgar Dickson of Orangeburg County. That means that Judge Goodstein will also play no further role in these proceedings, while Judge Dickson is a blank slate.

Nothing in that news changes the logic of my argument, however. The point is that Justice Hearn's participation in the case was invalid, and that she herself has acknowledged it was invalid. An invalid vote is a nullity, and cannot be counted.]

Monday, June 11, 2018

Justice Denied: SCOTUS Refuses South Carolina Petition

Today's order list from the United States Supreme Court brings the sad news that the Court voted to deny certiorari (review) in the case of Bishop Mark Lawrence and the parishes of the Diocese of South Carolina.  This means that no four justices considered the case important enough to have the Court's full attention, and says volumes about the secular makeup of our current Court.  (Or it could be telling us that the justices of the Supreme Court are better followers of St. Paul's advice on litigation than are most Episcopalians, Methodists and Presbyterians! Six of them are Roman Catholic, after all.)

It also means that the impossibly fractured, highly partisan and irresponsible decision of the court below will stand in infamy as possibly the worst application of so-called "neutral principles" on record. But that the Supreme Court chose to do nothing about the legacy that Harry Blackmun gave us says that it has disowned its responsibility for that doctrine, and in the future will mean that churches can expect no fair treatment of their property issues in the secular courts.

As, always, therefore, St Paul is vindicated yet again. And ECUSA gets just what it always wanted: a servient South Carolina of its own, with no regard whatsoever for the centuries of history that built the heritage it betrays today. By watching what the Episcopal Church and its minions do with the treasure that has been handed over to them, the rest of the Christian world will learn the nature of the god which Episcopalians today truly worship.

Wednesday, May 30, 2018

How Did Everybody Forget Where the Temple Was?

This is Part III of a series: Where Did Israel's Temples Stand? You may read Part I here, and Part II is here.

In the previous post in this series, we looked at the fairly convincing evidence that Jerusalem's present-day "Temple Mount," or Haram-esh-Sharif as the Muslims call it, is the foundation of what was once the Roman fortress at Jerusalem, built by Herod and named "Antonia" for his patron Mark Antony. It was not the site at all for any of the earlier temples which were at the center of Jewish religious life. Rather, as eyewitness testimony will show, the site for Herod's temple (and Zerubbabel's, and Solomon's) was at the top of the mount called Ophel, about 1000 feet to the south of the Antonia fortress.

In this post, I want to review the eyewitness testimony as to the temple's location, in contrast to that of Antonia's. We will start with the earliest testimony recorded just after Titus and his Roman soldiers had razed Herod's temple to the ground -- including all its foundations.  Our starting point is, once again, the first-century historian Josephus, who was in Jerusalem (and a member of Titus' staff) when the Romans destroyed the temple.

Josephus quotes Eleazar, the commander of the Jewish forces at Masada until that fortress in turn was overrun by the Romans three years after Jerusalem fell.  As the Romans were about to storm the last ramparts that defended the Jews there, Eleazar gave a speech urging his men to put themselves to the sword rather than accept death or captivity at the hands of the Romans. In the course of that speech, Josephus has him say of Jerusalem (Jewish War, 7:375-76 [Hammond tr., OUP 2017; my emphasis):
"Where now is that great city, the mother-city of the whole Jewish race, secure behind all those rings of walls, protected by all those guard-posts and massive towers, with hardly enough room for its arsenal of munitions, and with all those tens of thousands of fighting men to defend it? Where has it gone, that city of ours which was believed to have God as its founder? It has been torn up by the roots and swept away.  The only memorial of it left is the camp of those that destroyed it, still quartered in the ruins . . .".
While Eleazar's words might be artistic license rather than recorded verbatim, the fact that their author is Josephus, who was himself personally familiar with what the Romans left standing at Jerusalem, is guaranty enough that what Eleazar states is an accurate description  -- otherwise those with equal knowledge of the facts -- including Josephus' own sponsor, Titus himself -- could easily have contradicted him.

The next eyewitness testimony is from the time of the Emperor Hadrian, in 132 A.D., who with Roman troops put down the second Jewish rebellion which began that year, led by Simon bar-Kokhba.  That rebellion, unlike the first, was not fought in the streets of Jerusalem, because Titus and his troops had left the city uninhabitable. Citing contemporary accounts, Epiphanius of Salamis, who was the bishop of Cyprus, wrote in the fourth century:
It was in the second year of his reign when [Hadrian] went up to Jerusalem, the famous and much-praised city which had been destroyed by Titus the son of Vespasian. He found it utterly destroyed and God's Holy Temple a ruin, there being nothing where the city stood but a few dwellings and one small church. . . .  [Then] Hadrian decided to restore the city, but not the Temple.
Hadrian built the city he called Aelia Capitolina on the westernmost hill of the former Jerusalem, in the area of what Josephus called "the upper city." The builders used stones from the former Temple and from other ruins left by Titus. (This "recycling" of stones from the lower city has presented many puzzles for archaeologists at Jerusalem's various sites.)

The former City of David, on the lower eastern hill (where the temple had stood), was left to go fallow, and according to the testimony of St. Jerome (in his Commentaries, with reference to Isaiah 64:11) "the Temple which earned reverence throughout the world has become the refuse dump of the new city Aelia . . .".

The Christian historian Eusebius was the librarian at Caesarea, and frequently visited the library at Aelia in the early fourth century. On numerous occasions in his writings he laments the complete and utter destruction of the Temple, and notes that its site was now "a Roman farm like the rest of the country . . . I have seen the bulls plowing there and the sacred site sown with seed" (Ecclesiastical History VIII.3:406).

In contrast to the site of the Temple, other fourth-century writers referred to the site of Fortress Antonia as the site of the rebuilt Praetorium, where Jesus had been tried before Pilate. The Romans ceased using it as a fort around A.D. 289, and Eusebius reported it had deteriorated from disuse by the time he came to Jerusalem (Aelia). But St. Jerome again describes it rebuilt circa 380 A.D. as an "imperial residence", in which he invited his noble-born friend Paula (who had become a nun) to stay. (She declined on the ground that it was too ornate for a nun, even one who was noble-born.)

By the time of the "Piacenza Pilgrim", writing ca. A.D. 570, there was a Christian shrine, called the Basilica of St. Sophia or the "Church of the Holy Wisdom" built on the Praetorium platform to surround the "judgment rock" on which it was thought that Jesus had stood when Pilate sentenced him to death. From the description the Pilgrim gives of the rock, there can be no doubt that this is the same irregular stone over which the Dome of the Rock now stands, in the middle of the Haram-esh-Sharif, and the Pilgrim's narrative thus supplies the conclusive connection between the former Roman Praetorium (Antonia Fortress) and the Haram-esh-Sharif which so many now mistake as "the Temple Mount". The indentations which present-day Muslims identify as the "footprints of Mohammed" which the Prophet left as he began his final journey are the same which the "Piacenza Pilgrim" identified in 570 A.D. as the "footprints of Jesus" when he stood before Pilate.

Making this connection enables one to understand just how the memory of the original temple site was lost over time, and became conflated with the site of the Antonia, now the Haram-esh-Sharif. The Church of the Holy Wisdom stood over its revered rock during Byzantine times until the Persians (and Jewish soldiers) destroyed it in A.D. 614. As I noted in the post before this one, Caliph Omar, after conquering Jerusalem in A.D. 638, left the (now) bare rock alone when he built the al-Aqsa Mosque at the far southern end of the fortress platform to honor the Prophet's last journey. But by the time of the Caliph Abd-al-Malik in A.D. 691, Muslims had come to identify the visible markings on the rock with the Prophet's nighttime journey, and so he had the Dome of the Rock built over it, where it stands today.

So things went until the time of the Crusades. When the Christians conquered Jerusalem in A.D. 1099, they slaughtered most of Jerusalem's Muslim and Jewish inhabitants, and converted al-Aqsa and the Dome of the Rock into Christian places of worship. Later Crusaders mistakenly identified al-Aqsa as having been built on the site of Solomon's Temple, and called it "Templum Solomonis". King Baldwin II of Jerusalem, along with Jerusalem's then patriarch, gave approval to the formation of a military holy order to protect Christian pilgrims to the Holy City. He let them establish their headquarters in the refurbished al-Aqsa mosque, and due to its Christian name they became known as the "Knights Templar".

And ever since, Christians, Moslems and Jews have identified the Haram-esh-Sharif as the former site of the Jewish temples, beginning with that of Solomon.

The original connection between the Temple of Solomon and the Gihon Spring has been forgotten. (Even the Roman historian Tacitus referred to Herod's Temple as having an "inexhaustible spring" within its perimeter, while there were only cisterns -- and no spring -- to supply water for the Antonia Fortress.) To complete the circle back to the original temple site, I will review the evidence identifying Gihon's waters with the Temple in a subsequent post.

Wednesday, May 23, 2018

Where Were the Soldiers Quartered in Jerusalem?

This is Part II of a series: Where Did Israel's Temples Stand? You may read Part I here.

There are a good number of blog posts and articles on the Internet that deal with the relationship of Fortress Antonia to what is today called "Temple Mount" in Jerusalem. Most defend the current consensus among archaeologists that the two structures were adjacent, but that the Temple Mount area (some 35 acres) was vastly larger than the Roman fortress, which adjoined Temple Mount only at its extreme northwest corner. The scale model of first-century Jerusalem exhibited at the Israel Museum shows the consensus relationship:


(Click the photo to enlarge it.) The Fortress Antonia model consists of the four towers at the upper right-hand corner of the temple area. Here is a close-up of the model:



The problem is that there is precious little archaeological evidence to support this configuration of the Fortress, which renders it so small in proportion to the Temple area (about 1.5 acres compared to 35).

Fortunately, we have a good deal more eyewitness evidence than archaeological evidence. The first-century Jewish historian Josephus wrote about a number of features of the fortress. In particular, he states that it was situated on a rocky precipice that Herod had clad in smooth, polished stone to prevent any attempt at climbing it from outside, and that at its summit the fortress stood surrounded by a defensive wall that was three cubits (four and one-half feet) tall:
The fort of Antonia was situated at the angle formed by the western and northern colonnades of the outer temple  court, and was built upon a rock 75 feet high and precipitous on all sides. It was the work of King Herod, and a pre-eminent example of the breadth of vision which was inherent in his character. For a start, the rock was clad from the base up with polished stone slabs, both for ascetic purposes and to deny purchase to anyone attempting to climb up or down. Then in front of the fort building itself was a 4 1/2-foot wall, behind which the whole structure of Antonia rose to a height of 60 feet. . . .
(Flavius Josephus, The Jewish War 5:238-40, tr. by Martin Hammond [Oxford: Oxford University Press, 2017].)

One looks in vain for any such features depicted in the model at the Israel Museum. Indeed, by joining the front of the fortress directly to the northwestern corner of the temple colonnades, the Museum model makes it impossible for there to be any defensive wall 4 1/2 feet high, let alone such a wall perched on a rocky summit whose base was clad in smooth, polished stone slabs.

Regrettably, the same omissions are true of every other depiction of the fort I have viewed on sites that support the archaeological consensus, such as this one. But we are just getting started with the discrepancies between Josephus' account of the fortress and the modern-day consensus.

Note that Herod would have had to construct the Fortress before he began renovating the Temple, a process which both Josephus and other sources indicate started around 20 B.C. The reason is that Herod named the fort for his old patron, Mark Antony, who died in 30 B.C. after losing to the forces of Octavian at the battle of Actium. Thereupon Herod submitted to Octavian, who became the emperor Augustus Caesar in 27 B.C. It would not have been politically astute for Herod to name the fort after Augustus' former rival once Augustus became emperor -- and Herod was nothing, if he was not politically astute when it came to appeasing his Roman overlords.

As a consequence of its construction at a different time, and as Josephus explains in another passage of his Jewish War (6:144), the fort was separated from the temple by the distance of a stade (600 feet), but connected to it by two parallel colonnades that afforded an easy access for troops passing between one and the other, and which was the scene of intense fighting back and forth as the Roman soldiers in 70 A.D. advanced from the fort to the temple. You will see nothing of such a separation, or of a double colonnade, in any discussion of the fort by current archaeologists.

Nor will you read in consensus accounts about the huge numbers of Roman troops who were stationed in Jerusalem from time to time while Josephus was writing. That is because the recent translators of Josephus, bowing to the consensus of the archaeologists, have gone out of their way to minimize, and hence mis-translate, what Josephus actually says on the point.

Look at the Israel Museum model of Fortress Antonia once again (above). How many Roman soldiers can you imagine squeezed into such a space? Even if one makes a generous assumption that there was a full 1.5 acres inside the model's fort, that translates into just 65,000 square feet. Allowing just 65 square feet (13' x 5') for each soldier's tent and personal space, that means a maximum of 1,000 soldiers could be squeezed into the fortress grounds, without allowing any space for avenues, markets, baths, temples, exercise grounds and other areas found in a typical Roman camp of the first century, such as this one:



Josephus describes Fortress Antonia as capable of quartering an entire Roman legion, which typically consisted of ten "cohorts" of about 600 men each (Jewish War 5:244). To the 6,000 soldiers in any legion must also be attached those who made their livings by following and supplying army camps with everything from entertainment to food and drink -- estimated at another 4,000 or so. As Josephus states, the Antonia Fortress had enough conveniences in it to be likened to a polis, or Greek city (Jewish War, 5:241). Such a level of services would be out of all proportion for a facility designed to quarter just a few hundred men. Take a look at this illustration of the space needed for a full Roman legion:




If the reader examines the modern translations of Josephus' Jewish War, however, he or she will undoubtedly ask: where are the references to the Fortress containing a "legion" of soldiers? Both the most recent (2017) translation I quoted earlier, and the Loeb Classical Library edition of 1928 translated by H. St. James Thackeray, take the Greek word for "legion" which Josephus uses at 5:244, τάγμα (tagma), and translate it as "cohort"! In that way, they manage to shrink the Antonia garrison down to the size that will (still barely) fit into the modern consensus model of the fort.

Josephus, however, as an army commander himself and adviser to the Roman general Titus, knew perfectly well the difference between a legion (tagma) of 6,000 soldiers and a cohort of 600. When he wants to refer to the latter, he consistently uses the Greek word σπεῖρα (speîra -- see, e.g., Jewish War 1:301, 323-24).

Or take another instance of willful mis-translation: the Greek word στᾰδιαῖος, or stadiaios, is an adjective meaning "one stade [~600 feet] long, deep or high", or in other words, it describes the extent of the space that an object occupies. But the similar-looking word στᾰδαῖος, or stadaios, is an adjective meaning "standing erect or upright." In his Jewish War 6:144 (a passage I referred to above), Josephus used the former word to describe the long, narrow space in which the rebel Jews fought the Romans along the tops of the double-colonnades running between the northwest corner of the temple and the gate of the fort -- i.e., that space was one stade long, or just 600 feet.

Both modern translations, however, cannot square this description with the archaeological consensus model of a fort confined to a narrow area adjoining the temple's northwest corner. So once again, archaeology is allowed to trump eyewitness testimony: the translators make the word stadaios instead of stadiaios, and claim that the Greek manuscript itself must be in error.

Other common-sense considerations come into play. Take a close look at the illustrations of the model fort above, and then consider the timeline. How would it make any sense for Herod to have built such a diminutive fort in about 33-35 B.C., only then to expand the temple platform northward in 20-15 B.C. so as to crowd in on the fort's main entrance, and make it thereafter accessible only through the Temple itself? (Josephus says that there was a deep ditch on the fort's northern side, making it unapproachable and hence easier to defend.)

The main function of the fort was to house soldiers who came with the Roman prefect from Caesarea to Jerusalem to occupy it during the times of the Jewish holy festivals, when there might be over a hundred thousand pilgrims crowding into Jerusalem. Six hundred soldiers would be wholly inadequate to maintain control over such a crowd; 6,000 soldiers would be far more able to do so.

But the fort was an alien space to Jews like Josephus. They would have kept out of it, for fear of becoming unclean. (Recently, some ritual baths (mikva'ot) were uncovered at the foot of the southern steps leading up to the al-Aqsa mosque. Archaeologists pounced on their discovery as evidence of the existence of the Temple on the platform to which the steps led, but their presence is just as consistent with there having been a Roman fort on the platform, so that Jews who had to go to the fort could cleanse themselves immediately upon exiting it.) For this reason, no doubt, Josephus keeps his descriptions of it entirely to what could be observed of its exterior.

It is, then, only by selectively interpreting (and mistranslating) Josephus' eyewitness accounts that modern archaeology can form a consensus around the notion that Fortress Antonia was just a pimple on the northwest corner of a huge Herodian Temple Mount. When one reads the full account in his Jewish War, and the corresponding passages in his Jewish Antiquities, there is no basis whatsoever to try to confine the area of the fortress to such a ridiculously small size for its admitted purpose. (Indeed, typical Roman camps of the time were between 30-33 acres in size, so the platform which Herod constructed on the craggy summit overlooking the City of David was perfectly capable of being adapted to the needs of the Roman troops that had to come there.)

Nor does any other comparably sized site exist in the area of greater Jerusalem at which both a full Roman legion could be quartered, and still manage to fit Josephus' description of its site, as follows:
For if the temple lay as a fortress over the [lower] city, Antonia dominated the temple, and the occupants of that fort were the guards of all three, for the upper city had a fortress also, at Herod's palace. [Jewish War 5:245-46; my translation and emphasis.] 
This is just a smattering of the eyewitness evidence showing that in the first century, the Roman troops were quartered from time to time in Fortress Antonia, which had to occupy most of the 35 acres of the present Haram esh-Sharif platform on which the Dome of the rock and the al-Aqsa mosque currently sit, and which modern archaeologists and today's religious Jews insist was once Temple Mount. There is much more laid out in Ernest Martin's (now out-of-print) book, The Temples That Jerusalem Forgot. Unfortunately, that book is a tedious read, because Dr. Martin repeats himself endlessly, and a good deal of patience is needed to sort out the main points of his argument.

In the next installment in this series, I will go into the history of what became of Fortress Antonia after 70 A.D., when the Romans razed Herod's temple to the ground, and left not even one foundation stone standing -- while the same obviously is not true, as may still be seen today, of the foundation of the Roman fortress itself.








Wednesday, May 16, 2018

South Carolina Case Goes to SCOTUS Conference (UPDATED)

The petition for review (certiorari) filed by Bishop Mark Lawrence's Diocese of South Carolina and 28 of its parishes with the Supreme Court of the United States is now ready for decision by the justices. At least four of the nine justices on that Court must vote in favor of review for the case to be argued and submitted in the next term, which begins October 1 of this year and runs through June 2019.

The vote could (but is not likely to) come as early as tomorrow, Thursday May 17, which is the next date on which the justices will sit in conference to decide which petitions in cases that are now fully briefed should be granted review, and which denied. (Denial of review does not mean that the case lacked merit, or that the decision below was constitutionally correct. It simply means that no four justices of the Court felt that the case was important enough to be addressed by the full court.)

In an earlier post, I linked to the Petition, which is here. The brief in opposition (which the Court requested the respondents to file, after they first tried to waive their right to respond) is here.  The Diocese's reply to that opposition (filed just yesterday) is here.  The U.S. Supreme Court's docket page will also let you download the two amicus ("friend of the court") briefs in support of the Diocese's petition, one filed by a group of 18 professors who teach First Amendment law in various schools across the country, and the other filed by the American Anglican Council.

All the briefs are worth reading -- they are very well written, and concisely present the reasons why SCOTUS should grant review.

In their respondents' brief, ECSC and ECUSA took a gamble by resting their main opposition upon just a single ground: that the Court lacked jurisdiction to review the case because the five divided justices of the South Carolina Supreme Court had decided the case below on independent state-law grounds, and did not rest their decision on any interpretation of federal law. (SCOTUS reviews only issues of federal law that are decided by either the state or federal courts.)

As the Diocese's reply brief points out, this claim is far from accurate. Two of the justices below (Pleicones and Hearn) were clear that they viewed the 1979 decision of the U.S. Supreme Court in Jones v. Wolf as requiring them to give effect to the trust on church property imposed by the Dennis Canon, even if the documentation of that trust failed to pass muster under South Carolina law. In other words, Justices Pleicones and Hearn held that the First Amendment trumped state trust law -- and that was obviously a federal ground of decision.

Even Chief Justice Beatty, who declined to articulate his reasoning, held that the Dennis Canon was sufficient to create a trust under South Carolina law so long as the individual parishes "acceded" in some way to that Canon. Since, as Justice Kittredge pointed out in dissent, any argument that a trust under South Carolina law could rest upon such a dim showing of assent was "laughable", it is only fair to conclude that Chief Justice Beatty reached his result by relying upon the same (federal-law) reading of Jones v. Wolf that drove Justices Hearn and Pleicones.

In sum, the South Carolina case presents as good a reason as ever will arise for SCOTUS to grant review, in order to end the confusion over the meaning of Jones that divides some nineteen different state and federal courts below. (Those decisions are reviewed and discussed at pp. 21-29 of the Diocese's petition.)

So stay tuned -- although the Court will probably not consider the petition that soon, we could have a decision announced in the orders to be released next Monday morning. And if not then, there is Tuesday, May 29; after that, there are four more days in June (June 4, 11, 18 and 25) for orders to be issued. If the Court follows its normal practice, the petition would be considered earliest at its June 7 conference, but it could also be "carried over" to the one on June 14 or on June 21.  

[UPDATE 05/22/2018: The docket page for the South Carolina case on the SCOTUS Website is now showing the entry: "DISTRIBUTED for Conference of 6/7/2018." So now we are advised -- look out for a decision on the petition in the orders issued beginning at 10:00 am on June 11. As is all too typical of such momentous events, your Curmudgeon is scheduled to be on vacation in Ashland on that date. But I will make an exception that morning, and will put up a blog post no matter what the Court decides. It is also possible, as I mentioned above, that the Court could "relist" the petition for consideration at its conference on June 14, or June 21 -- which would be the last conference in the current term. Such a resisting, if it occurs, means that there are some justices interested in granting the petition, and some who are still undecided, or on the fence. Both groups want more time to discuss the case and see if they can reach a consensus.]



Monday, May 14, 2018

Where Did Israel's Temples Stand?

(Part One of a Series)

With the recent news of renewed clashes between Jews and Muslims over the right to occupy Jerusalem's so-called "Temple Mount", your Curmudgeon has thought it timely to remind people of all the historical evidence that bears on that site as a place of worship. This post will introduce a series in which we will carefully and thoroughly examine all of that evidence.

By the time we have gone through everything that is on point, you should have a good understanding of the issues at stake -- far better, alas, than those who are currently fighting over the Mount. The traditional views are by now so entrenched (going on 1,100 years) that one despairs of ever freeing them from the deep investment that so many have in them.

Daunts, however, never stopped this Curmudgeon from proceeding ahead. If readers will bear with me to the end of the series, I hope to have demonstrated to them the strong support that exists for the following claims:

A. Neither Solomon's Temple, nor Zerubbabel's, nor Herod's Temple ever stood upon what is now called "Temple Mount".

B. Solomon's Temple was burned and destroyed by Nebuchadnezzar in 586 B.C. Zerubbabel's rebuilding of that Temple, begun around 538 B.C., was replaced beginning in 19 B.C. by Herod's restoration of it. The latter stood until 70 A.D., when -- exactly as predicted by Jesus (Mt. 24:2) -- the Romans tore it down and dug up all its foundations in reprisal for the Jewish rebellion that started in 66 A.D.

C. What is now called "Temple Mount" in Jerusalem is the foundation that remains of the Roman pretorium and fortress there, as finally enlarged by Herod and then by the Romans themselves, and that was known to Josephus (the first-century historian of the Jewish War) as "the Antonia Fortress", named by Herod after his patron Mark Antony.

D. The site for the three great Jewish temples was downslope from the Antonia Fortress, on a lower plateau that was originally a threshing floor when King David, on God's direct command, purchased it from its Jebusite owner as the site for the future "House of God" which it fell to Solomon to build. (See the diagrams at the previous link; see 1 Chr. 21:15-18.)

E. This site was very close to old Jerusalem's only natural spring, the Gihon, whose clear and abundant waters were used to clean the altar and Temple after the regular animal sacrifices that took place there.

F. The so-called Temple Mount had (and has) no such natural water source. The Roman camp there was at first entirely dependent on cisterns constructed by King Herod, but at the time Solomon built his temple, the rocky crag that Herod eventually leveled to build the Antonia Fortress had no water source of any kind, and would therefore never have been considered as the site for a temple.

G. The actual Temple site, which the Romans destroyed utterly so that there was not one stone left even of its foundations, will never be capable of being verified through archaeological excavations. In contrast, over 10,000 huge stones still remain of the foundation walls for the Antonia Fortress, which the Romans naturally left intact, as they continued to use it as an army camp until around 329 A.D.

H. Thus the much-revered "Wailing Wall" -- the western wall of the Antonia foundations at which so many pious Jews gather each day and lift their prayers to God for the rebuilding of their Temple is -- if only they knew it! -- not part of Herod's former temple at all.

I. When Caliph Omar conquered Jerusalem in 638 A.D., the Christians had earlier built a church over the rock at the center of the Antonia platform. This church venerated the supposed site upon which Jesus stood when Pilate sentenced him -- since Pilate was in the pretorium with his troops at the time of the Passover festival. Some Christians even claimed that there was a footprint of Jesus still visible on the rock. Omar, naturally enough, wanted to honor Mohammed rather than Jesus, so he built the Al Aqsa mosque at the southern end of the Antonia platform, where it stands today.

J. But Omar's later successor had no such compunctions about the Christian church over the rock. Abd al-Malik claimed that the rock in fact was the one from which Mohammed departed this earth for heaven on horseback. He and his followers invented a number of other myths about the rock, and began the cult that causes Muslims today to recognize the spot as Islam's third holiest place.  Abd al-Malik erected the Dome of the Rock above it in 691-2, where it stands today; the tip of the rock is visible from a viewing platform in the center of the building.

K. Given that the actual site for the Jews' own temples lies in an area of the City of David that Israel both owns and controls, there is nothing to hinder the Jews of today from rebuilding their temple -- nothing, that is, except well-entrenched tradition. There is a growing body of scholars, however, who today are reassessing that tradition in light of all the evidence that points to the Temple's true site near the spring of Gihon. Perhaps some day soon, the Jews' recognition of that site will lead to an end to the pointless disputes over the remains of an old Roman fortress.

Have I whetted your appetite? Stay tuned as this series gets under way.

Sunday, April 8, 2018

Texas Court's Mighty Labor Is in Vain

The Second District Court of Appeals in Fort Worth has labored long and hard over the appeal taken by the Episcopal Church (USA) and its local diocese and parishes from the July 24, 2015 summary judgment order granted against them by Judge Chupp of the 141st District Court of Tarrant County. In the two years the appellate panel took after argument to decide the case, one of its members retired, but the other two soldiered on. Chief Justice Bonnie Sudderth authored the massive, 178-page opinion in the case; the remaining panel member, Associate Justice Gabriel, concurred without writing separately.

(I shall refer to the case here as the "Salazar case" -- using the name of its first-listed defendant -- in order to distinguish it from the prior Episcopal Church case decided by the Texas Supreme Court in 2013.) As its length indicates, the Salazar opinion is thorough and careful -- but alas, length is no guarantee that the Court got it right. Along about page 130, C.J. Sudderth loses her way, goes down an older path that is now discredited, and ends up with a conclusion that contradicts her earlier premises.

Need I add that the chief beneficiary of this judicial wayfaring is none other than ECUSA itself? Since it is likewise the chief architect of all the confusion in church property cases, it may now chalk up one more victim in its systematic campaign to establish itself as a church which no court in the land may touch. It confuses courts by bombarding them with reams and reams of religious and historical documents -- the Court in this case mentions (p. 41, n.41) that the record contains over 14,000 pages -- which it then proceeds to distort and misconstrue, using technical ecclesiastical concepts with which the secular courts are largely unfamiliar.

In this case, C.J. Sudderth went to the extreme of diagramming a "decision tree" to assist her in finding her way through the forests of legal argument, fustian and mostly irrelevant documents. One version of the tree appears on page 103 of her opinion; a later one is at page 159.  Using either one, the careful reader can see at a glance where the court takes its misstep. From the one on page 103:

The road map flashes yellow at the node "Hierarchical Church?"; a "yes" answer leads to the next (and highly misleading) node -- "Has highest church authority decided issue?"  Once the "yes" box is again chosen as the exit, the path is determined, and the erroneous conclusion ("Defer to highest church authority's decision") is unavoidable.

A regular reader of this column should know by now of the church-property-law parameter called "neutral principles." The Court's decision tree acknowledges that Texas follows neutral principles in deciding church property disputes (see the very second node at the top of the tree).

But by introducing and then opposing the terms "hierarchical" and "congregational" (see the lower middle of the tree), the Court actually jettisons "neutral principles" in favor of harking back to the 19th-century model of Watson v. Jones (1872), by which one "defers" to hierarchical churches, and follows majority rule in congregational ones.  By definition, a court that chooses to defer in its judgment to that of just one particular kind of church, but not to other kinds, is not applying "neutral" principles.

In other words, a court cannot say with one breath that it follows neutral principles, and then with the next say that it has to defer to the highest tribunal in a so-called hierarchical church. If you would like to read an excellently reasoned exposition of why this is so, go no farther than this short amicus brief filed last week on behalf of 18 law school professors in support of the petition brought by the Rt. Rev. Mark Lawrence and his Diocese of South Carolina before the United States Supreme Court. (You may choose to read the whole brief, but the argument I am talking about begins on page 9 and runs to page 15.)

Let us now see how this unfortunate departure from neutral principles lands the Second District Court of Appeals in a welter of contradictions.

After reviewing the history of church property cases in the United States Supreme Court, and fleshing out what that Court meant by the term "neutral principles", the Texas Court of Appeals then focused on its own Supreme Court's recent decision in Masterson v. Diocese of Northwest Texas (Tex. 2013) 422 S.W.3d 594 as instructing how neutral principles of law are used to resolve church property disputes in Texas. It set out the following concise summary of Masterson's holdings (pp. 78-79):
  • Absent specific, lawful provisions in a corporation’s articles of incorporation or bylaws otherwise, whether and how a corporation’s directors or those entitled to control its affairs can change its articles of incorporation and bylaws are secular, not ecclesiastical matters, and an external entity—under the former or current statutory scheme—is not empowered to amend them absent specific, lawful provision in the corporate documents. Id. at 609–10 (citing Tex. Bus. Orgs. Code § 3.009; Tex. Rev. Civ. Stat. Ann. art. 1396–2.09).  

  • The TEC-affiliated bishop could, as an ecclesiastical matter, determine which faction of believers was recognized by and was the “true” church loyal to the Diocese and TEC, and courts must defer to such ecclesiastical decisions, but his decision identifying the loyal faction as the continuing parish does not necessarily determine the property ownership issue, and his decisions on secular legal questions such as the validity of the parish members’ vote to amend the bylaws and articles of incorporation are not entitled to deference. Id. at 610. 

  • If the title to the real property is in the corporation’s name and the language of the deeds does not provide for an express trust in favor of TEC or the Diocese, then the corporation owns the property. Id. 
These propositions are all correct statements of Texas law as expounded in Masterson. Followed correctly, they should have led to a correct decision in the Fort Worth case. Instead, look where the Salazar court ended up:

Despite repeating (at p. 171) the first paragraph from Masterson just quoted, and despite holding (ibid.) that "[a]s nothing in the Corporation’s [articles and bylaws] provides for TEC’s approval and nothing in our law precludes the amendments [to the articles and bylaws by the trustees of the Corporation] to exclude references to TEC, TEC lacks standing for a claim as to the Corporation," the Court nevertheless concludes that it is the TEC group, and not Bishop Iker and his trustees, who must be given control of the diocesan Corporation.

Despite acknowledging that the trustees of Bishop Iker's diocesan Corporation had full power and authority to amend that Corporation's articles in 2006, before the diocese disaffiliated from ECUSA in 2008, the Court found that the latter vote automatically disqualified Bishop Iker and his trustees from continuing to hold office in the Corporation!

Why? Look at the breathtaking non-sequitur in this argument (pp. 172-73):
The schism gave rise to two distinct entities: one recognized by TEC as the Episcopal Diocese of Fort Worth and one self-identified by Appellees as such. The bylaws and articles do not provide a description of the characteristics of the diocese self-identified by Appellees, but they do require that elected trustees be either lay persons in good standing of a parish or mission, or canonically resident, in the entity identified by the Corporation’s board as “the body now known as the Episcopal Diocese of Fort Worth.” [Emphasis added.] As set out above, it is within TEC’s province to identify its diocese in the geographic area identified as Fort Worth and what it takes to be a member in good standing or canonically resident therein. Accordingly, on November 15, 2008, when Appellees voted to disaffiliate, it was TEC’s prerogative to determine whether the board members of the diocese formerly associated with TEC had become disqualified under the Corporation’s bylaws.
It simply does not logically follow that if ECUSA (what the court calls "TEC") had no ability to change the officers or amend the bylaws or articles of the Diocesan Corporation, it nevertheless had the metaphysical ability to "disqualify" -- retroactively! -- those officers once the Diocese had voted to disaffiliate and separate themselves from ECUSA's jurisdiction.

The Court fails to trace the secular, legal existence of the entities involved. As it acknowledges, prior to the vote to disaffiliate, there was only one diocesan Corporation. But that is equally true immediately after the vote to disaffiliate! There were not automatically two Corporations thus brought into legal existence by the vote to disaffiliate -- the second one had first to be legally formed by the ECUSA dissenters under Texas law and then file papers to incorporate, i.e., to be recognized as a corporate entity in the eyes of the State of Texas. That process took several months -- and only then was there a separate entity which ECUSA was capable of "recognizing" as its own "Diocese of Fort Worth."

The second entity not only began its existence long after the first; it also had entirely new offices at a new physical address, new telephone numbers, new officers and directors, as well as a new interim bishop; and a very different set of governing documents when compared to the original Corporation.

Thus the Court engages in a metaphysical sleight of hand when it purports to give ECUSA (and only because it is a "hierarchical" church, remember) the ability to usurp and take over the governance of Bishop Iker's Corporation, in a fashion wholly at odds with the Masterson decision.

To demonstrate the folly of the Court's illogic, one has only to ask this question: So ECUSA and its Fort Worth group now get to move into the offices and take over all the property belonging to Bishop Iker's Corporation? Well, what becomes of the new corporation that ECUSA had formed following the disaffiliation of the old one? Bishop Iker can scarcely succeed to that corporation -- does it just lie forever dormant and vacant? And does Bishop Iker now have to organize a third corporation under Texas law? This is the kind of nonsense that flows from a failure to keep a proper track of the various legal entities, all the while supposedly "deferring" to the actions of a body that will twist and turn the law to any degree necessary to serve its own greedily chomping maw, swallowing up all the church real property it can see around it, whether it has use for it or not.

To labor so long, and to come out with such a mockery of neutral principles -- the Texas Court of Appeals has put its name to a genuine travesty of justice. Bishop Iker and his attorneys are not about to let this result stand. Meanwhile, we can all pray for the inwardly collapsing Episcopal Church -- falling in on its very substance as, like some sort of dying ecclesiastical nova, it expels and consumes all that had kept it functioning until this century. May it come to its senses, and stop all this legal manipulation, misdirection and misguidance of the secular courts to gain what is at best a short-term, and eventually suicidal, advantage.




Monday, March 26, 2018

Don't Get Drawn In

Your Curmudgeon, it is true, swore off getting involved in the current political miasma: there was nothing to be gained from trying to make one's voice heard in the welter of so much fake news and disinformation. I advised my readers to remain above the fray -- and that remains good advice.

However, there comes a time when the rule should be suspended, in the interest of keeping my regular readers confirmed in their course. And now, with President Trump's signing of the so-called "Omnibus Bill" -- a bloated monstrosity of legislative diarrhea if ever there was such a thing -- is the time to dive in and point out the facts which the mainstream media are withholding from the public.

The Omnibus Bill, pretty much everyone agrees, is a spending bacchanal -- there are few limits to what the Democrats want to spend money on, and supposedly likewise for the RINOs who are currently controlling the flow of legislation in Congress. Planned Parenthood?  It gets full funding, as always. The long-promised border wall? Only a stretch of fence is supposedly funded, and the President is supposedly barred from spending any of the fence money on his Wall.

Well, your Curmudgeon is here to tell you that what you read and see in the mainstream media on these points is all fake: it could not be farther from the Constitutional reality that our founders established in 1789.

You see, under the Constitution and Article I, it is Congress' responsibility to pass a budget -- which blueprint, if Congress wants its budget to become a Law of the United States, binding on the President and other branches, has to be in the form of a Bill (see U.S. Constitution, Art. I, Sec. 7).

As you may (or may not) have read in the media, the so-called "Omnibus Bill" was not a bill at all, but was technically a "Continuing Resolution." That is to say, although it likewise requires a presidential signature before it becomes effective (see Sec. 7 again), it does not bind the Executive branch the way that a Law does.

Let that sink in a bit. It means that although Congress, for example, voted funds to be spent on Planned Parenthood, there is no legal consequence for President Trump if he instructs his Secretary to sequester those funds. Congress may complain all it wants, but until it passes an actual budget bill, it has no means of forcing the President's hand.

And if Congress could have passed a budget bill, you may be certain it would have. It took the easy way out, drafting a 2,200-page Continuing Resolution in secret that kept the rank-and-file members themselves from knowing what was in it until they passed it. Passing a budget would have required the various committees with jurisdiction to break out the numbers, hold public hearings, and engage in compromises and trade-offs to get each segment of the budget out of committee and to the floor for a final vote. (That's the way Congress is supposed to function -- remember your basic civics?)

Unlike a real budget, which remains in effect throughout an entire fiscal year, the Continuing Resolution is good for just six months, until the current fiscal year ends on September 30. From now until then, therefore, it will be Trump, not Congress, who controls the purse strings.

I have heard speculation that President Trump signed the Resolution in full knowledge of this fact (given that he relies on his capable and experienced budget director, Mike Mulvaney). At the same time, he sent a signal to Congress by warning that he would "never, ever" sign such a resolution again. The speculation is that Trump may be setting up Congress for a big showdown this October, just in advance of the November elections. His message to the voters would be, in effect, "Don't re-elect any of these guys who think they can run the government by omnibus appropriations -- they're just flim-flamming you."

At any rate, your Curmudgeon felt that this information was important enough to bring it to your attention, since you will never read about it in the national media. Watch and see what happens over the coming months -- the proof will be in how Trump authorizes (or withholds authorization for) his Cabinet secretaries to spend the money that Congress voted.

Tuesday, March 6, 2018

The Press Has Not Learned Anything in 50 Years

From the book by Bret Baier, Three Days in January -- Dwight Eisenhower's Final Mission (New York: William Morrow [HarperCollins] 2017), presented here without comment (pp. 276-77):
The weight of office having been lifted, those around him [Eisenhower] observed he grew warmer and mellower with age. Still, Ike kept his edge. Speaking to Ike and Mamie on the occasion of their fiftieth wedding anniversary [on July 1, 1966], an interviewer asked Ike whether he would marry the same girl if given a chance to do it all over again. Ike roared. "That's the worst question I ever heard! There's only one possible answer."

Saturday, February 10, 2018

Diocese of South Carolina Asks US Supreme Court for Review [UPDATED]

Bishop Mark Lawrence and his Diocese of South Carolina, along with a number of member parishes, having lost a confusing, non-definitive and divided decision in that State's Supreme Court, have filed a petition for writ of certiorari (review) in the United States Supreme Court. The petition (fifty pages, downloadable from this link) asks the Court to bring harmony to the multiple lower court decisions that diverge over the meaning of "neutral principles of law" as used by the Court in its seminal case of Jones v. Wolf, 445 U.S. 595 (1979).

As the petition lays out with masterful clarity, both state and federal courts apply differing standards of "neutral principles" in approaching the resolution of disputes over the ownership of church property:
Nearly 40 years after this Court last addressed the neutral-principles approach in Jones, the courts are deeply divided about what “neutral” means. For many courts, “neutral” means just that—“neutral”: the high courts of seven States, plus the Eighth Circuit and three intermediate state courts, follow Jones’ clear guidance and resolve property disputes between religious organizations by applying well-established state trust and property law. These jurisdictions hold that a disassociating local church’s property is held in trust for the national church only if the alleged trust satisfies ordinary state law requirements for the creation of trusts. Courts and commentators call this the “strict approach” to Jones, because it blinds judges to the religious nature of the parties to the dispute, requiring them to apply the same ordinary state law that would apply to property disputes between any other parties.
In stark contrast to these decisions are the cases where the lower courts found that Jones mandated that they defer to whatever kind of "trust" was expressed in a national church's governing documents, regardless of whether that church had complied with state-law requirements applicable to the formation of trusts in real property:
For other courts, however, the neutral-principles approach “is not really ‘neutral’ after all.” App.61a (Kittredge, J., concurring in part and dissenting in part). The high courts of eight States, including the Supreme Court of South Carolina here, believe Jones requires courts to recognize a trust in favor of a national church even if the national church has not complied with “the specific legal requirements in each jurisdiction where the church property is located.” App.28a n.11 (lead opinion of Pleicones, A.J.). These courts believe that requiring a national church to comply with ordinary state law “would impose a constitutionally impermissible burden on the National Church and violate the First Amendment.” App.42a (Hearn, J., concurring). Liberating national churches from the constraints of state law, these courts place a dispositive thumb on the scale in favor of national church denominations. This is called the “hybrid approach” to Jones, because it eschews application of ordinary state law in favor of deference to the national church’s unilateral rules and canons.
In church property cases involving parishes and dioceses within the Episcopal Church of the United States (ECUSA). this discord is due to the differing receptions given to that body's so-called "Dennis Canon":
The Supreme Court of South Carolina’s highly fractured decision below typifies the courts’ yawning division over the neutral-principles approach. Petitioners have disassociated from the national Episcopal Church. The parish properties at issue here are titled in the names of Petitioners, not the national church. Under ordinary principles of South Carolina trust law, in the strong words of Justice Kittredge below, “the suggestion that any of the thirty-six local churches created a trust in favor of the national church would be laughable.” App.61a. Nevertheless, the court below, in a 3-2 decision, held that a trust could exist in favor of Respondents because the national church has promulgated the “Dennis Canon,” a unilateral ecclesiastical declaration that all parishes affiliated with the Episcopal Church hold their property in trust for the national church. Although neither the Dennis Canon nor any parish’s alleged accession to that Canon created a legally cognizable trust under South Carolina law, the court below thought Jones and the First Amendment required it to recognize a trust in favor of the national church.
Jones is clear: Because the neutral-principles approach demands application of ordinary state law, courts may give effect to property deeds or to trusts recited in the constitution of a general church only if the parties’ intent “is embodied in some legally cognizable form.” 443 U.S. at 606. Courts adopting the hybrid approach ignore Jones’ unambiguous guidance because they believe that requiring national churches to comply with ordinary state trust law would violate the Free Exercise Clause. E.g., App.42a (Hearn, J.). But Jones squarely rejected that argument, holding that “[t]he neutral-principles approach cannot be said to ‘inhibit’ the free exercise of religion, any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods.” 443 U.S. at 606.
The petition then addresses the Court directly, and explains why it should grant review:
Petitioners are here for one simple reason: they are churches. If this dispute arose between two secular organizations, or between a religious and a secular organization, the party standing in Petitioners’ shoes would have prevailed. Thus, far from yielding to the First Amendment, the decision below actually violates it. The Religion Clauses command a “principle of neutrality” whereby “the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause.” McCreary Cty. v. American Civil Liberties Union of Ky., 545 U.S. 844, 875-76 (2005). The hybrid approach disregards this vital bulwark, favoring one religious organization over another by allowing a national church to disregard the requirements of state trust law at the expense of a disassociated congregation’s claim to property. As two leading commentators recently emphasized, the strict approach to Jones is “the only approach consistent with the free exercise and nonentanglement principles of the Religion Clauses.” Michael W. McConnell & Luke W. Goodrich, On Resolving Church Property Disputes, 58 ARIZ. L. REV. 307, 311 (2016). 
The persistent confusion over the meaning of Jones and the neutral-principles approach has resulted in polar-opposite outcomes in materially indistinguishable cases, creating enormous -- and enormously expensive -- uncertainty for this country’s religious institutions. Case outcomes turn on courts’ differing interpretations of Jones and the First Amendment, not on how the parties have arranged their affairs under state law. This case could have been easily resolved under ordinary state trust and property law. Instead, the parties and the property have been mired in litigation since 2013. Several years and millions of dollars later, Petitioners seek this Court’s review.
The introduction to the Petition, from which I have been quoting, thus gives a good overview of the problems of interpretation that have brought Bishop Lawrence and his parishes to the doorstep of our country's highest court.  In the section entitled "Statement of the Case" (beginning at page 17 of the .pdf file), the petitioners lay out the historical and legal background that underlies their particular situation, e.g., as in these paragraphs:
Petitioners are 29 parishes, the Protestant Episcopal Church in the Diocese of South Carolina (“the Diocese”), and the Trustees of the Protestant Episcopal Church in South Carolina (“the Trustees Corporation”). This case involves a dispute over property where Petitioners have long worshiped. Some of the parishes involved in this case are among the oldest in the nation and predate both the American Revolution and the formation, in 1789, of the Protestant Episcopal Church in the United States of America (“the national Episcopal Church”). App.151a-52a. For example, the Parish of Saint Philip dates to 1680, while the parishes of Christ Church and St. Helena date respectively to 1706 and 1712. App.151a. The parishes’ graveyards provide the resting place for signers of the Declaration of Independence and the United States Constitution, Justices of the Supreme Court of the United States, a Vice President of the United States, and heroes of the Revolutionary War. 
Everyone agrees that the parish property is “titled and held in [the] names” of Petitioners, and that “there is nothing in the deeds of their real property referencing any trust in favor of [the national Episcopal Church].” App.171a; see also App.75a-76a, 80a. Moreover, “[t]he undisputed evidence is that all the real and personal property at issue was purchased, constructed, maintained and possessed exclusively by the Plaintiffs.” App.175a. See also App.105a, 154a. The national Episcopal Church nevertheless claims Petitioners’ property and argues that Petitioners hold the parish property in trust for the national church. This claim relies primarily on the fact that in 1979, the national church pronounced the “Dennis Canon” . . .  
The national Episcopal Church “chose not to place its Dennis Canon in its Constitution,” perhaps because “[t]o do so would require that the proposed amendment be sent to all the Dioceses first to get their conventions to vote on the proposed amendment.” App.173a. “Rather, [the national Episcopal Church] chose to pass it as a canon, which required a single vote at one Convention [of the national Episcopal Church].” Id. “To make matters more confusing, the denomination’s official commentary on the Dennis Canon suggested that it might have no legal force.” McConnell, 58 ARIZ. L. REV. at 320.
The Statement of the Case concludes with a section that summarizes the five fractured opinions of the individual justices below, as discussed in this earlier post. Then comes the main body of the Petition, called "Reasons for Granting the Petition," which argues that the divisions among the South Carolina justices are but a reflection of the divisions among the various state and federal courts that have addressed church property disputes in the forty years since Jones:
Once a local congregation legally disassociates from the national church over a doctrinal matter, it by definition no longer adheres completely to the national church’s fundamental tenets. The law cannot then place a thumb on the scale in favor of a national church in its property dispute with a disassociating congregation any more than it can enact a presumption that the national Episcopal Church shall prevail in litigation against the Roman Catholic Church or Ford Motor Company. 
The division over the meaning of Jones is deep and intractable. Even the cavernous divide among states understates the extent of disagreement over Jones, for many of the state court decisions feature impassioned dissents contending that the majority has misapplied Jones. This massive inconsistency in the results of materially indistinguishable cases has visited enormous and expensive uncertainty upon this country’s religious institutions. Worse still, by unmooring courts from the predictability of established state law, the hybrid approach “gives judges tremendous flexibility to reach almost any result—making the outcome unpredictable and largely dependent upon the predilections of the judges.” McConnell, 58 ARIZ. L. REV. at 339 (quotation marks and brackets omitted). The need for clarity is more pressing now than ever, for this “time of intense theological ferment and division” has led to some of “the most widespread schisms in our nation’s history.” Id. at 321. 
Four decades after Jones, the Nation’s lower courts and religious institutions are in urgent need of this Court’s guidance.
In the more detailed sections that follow, the Petition demonstrates how the South Carolina majority's reading of Jones (a) misreads that decision; (b) conflicts with the Supreme Court's other decisions under the Establishment and Free Exercise clauses of the First Amendment; and (c) undermines the stability of real property markets, as well as "the rule of law." Be sure to read the whole thing -- you will gain an understanding of the confused state of the law in this area, and of the crying need for the Supreme Court to make clear, once and for all, what it meant by the phrase it so stressed in Jones, namely, "neutral principles of law."

The Petition is also remarkable for what it does not argue. There is barely a mention, for example, of the disgraceful and disqualifying conduct of Associate Justice Kaye Hearn below, and no argument whatsoever that the South Carolina court's refusal to appoint a fifth justice in her place (resulting in the denial of Bishop Lawrence's petition for rehearing due to an evenly divided court) constituted a denial of due process. (The stark facts, however, are stated for all to read on pages 28-29 of the .pdf file [pages 17-18 of the Petition itself].) These are the kinds of decisions that litigators in the nation's highest court have to make in presenting their arguments to it. One goes with the strongest arguments first, and sometimes adding more arguments will just undermine the strength of the earlier ones.

The Episcopal Church in South Carolina, which will receive the windfall of millions of dollars' worth of historic church properties if the Court declines to review the case, now has thirty days in which to file its response to the petition. (It can also ask for a thirty-day extension.) After that, Bishop Lawrence's attorneys may file a reply brief, and then the case will be placed on the court's Friday calendar for disposition. It will require the vote of at least four of the nine Supreme Court justices to grant review.

We shall know better after all the briefs are filed, but look for an announcement some Monday morning in May, after 10:00 am EST. Please keep all the parties in South Carolina in your prayers.

[UPDATE 02/27/2018: The Supreme Court has ordered the respondents -- ECUSA and ECSC -- to file a brief in response to the petition by March 29. This means that the Court did not want to act on the petition before hearing from both sides. (Ordinarily, a respondent in the Supreme Court has the option of waiving the filing of a response to a petition for certiorari [review]. But not this time.)

With respondents' brief due on March 29, any reply brief from the petitioners will be filed by April 9, and the Justices could consider the petition at one of their Friday conferences on April 20 or 27. If the respondents ask for an extension of time, this sequence will stretch out by thirty days or more.]